R v IP - [2024] NSWCCA 16

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v IP [2024] NSWCCA 16
Hearing dates: On the papers
Date of orders: 26 February 2024
Decision date: 26 February 2024
Before: Harrison CJ at CL at [1];
Wright J at [17];
Wilson J at [18]
Decision:
Allow publication of the name of BM in full

Catchwords:
CRIME – Suppression and non-publication – protection for publishing or broadcasting the name of accused children and child victims under s 15A Children (Criminal Proceedings) Act 1987 (NSW) – whether publishing or broadcasting the deceased child victim’s name under the exception in s 15E Children (Criminal Proceedings) Act 1987 (NSW) would be likely to lead to the identification of the accused child – not a question of the possibility of identification by those in the community with personal knowledge of the circumstances of the alleged offence – whether the judgment published with the name of the deceased child would likely lead to the identification of the accused

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW), ss 15A, 15E
Criminal Appeal Act 1912 (NSW), s 5F(3A)

Cases Cited:
R v IP [2023] NSWCCA 314

Category: Procedural rulings
Parties: Director of Public Prosecutions (Applicant)
IP (Respondent)
Representation:
Counsel:
A Bonnor (Applicant)
Solicitors:
Office of the Director of Public Prosecutions (Applicant)
Ramsland Laidler (Respondent)

File Number(s): 2022/9349
Publication restriction: Nil

JUDGMENT

HARRISON CJ at CL: During the trial of this matter last year, the Director of Public Prosecutions appealed to this Court pursuant to s 5F(3A) of the Criminal Appeal Act 1912 (NSW) from rulings made by her Honour Sweeney J on 20 November 2023. Her Honour had published a judgment in which she dismissed objections taken by the Crown to the admission of certain portions of expert evidence directed to the question of whether the Crown can rebut the presumption of doli incapax. We allowed the appeal and made certain consequential orders: R v IP [2023] NSWCCA 314. The reasons for judgment were restricted to the parties pending the verdict or further order of the Court. On 20 December 2023, a not guilty verdict was returned by the jury. The criminal proceedings are now complete and there remains no impediment to the publication of the Court’s judgment.
Since then, the Crown had notified the Court that the senior next of kin of the victim BM wish to waive their right to the protection of his anonymity. Their consent to publishing his name has been communicated in writing to the Director who in turn is satisfied that the statutory requirements for that to occur have been established. The burden of that submission is that when the Court’s unrestricted judgment is published, BM’s full name should be disclosed.

Crown submissions

The Crown emphasised that IP continues to enjoy the protection afforded to him by s 15A(1)(a) of the Children (Criminal Proceedings) Act 1987 (NSW). In such circumstances it is said to follow that the question to be considered is whether the publication…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v IP

Details

AGLC: R v IP [2024] NSWCCA 16
Case: [2024] NSWCCA 16
Decision Date: 26 February 2024

CaseChat Overview and Summary

In the case of R v IP, the appellant stood charged with the murder of a deceased child. The central dispute in this case involved the suppression and non-publication of the names of the accused and the deceased child, as governed by the Children (Criminal Proceedings) Act 1987 (NSW). Specifically, the issue was whether publishing or broadcasting the name of the deceased child, under the exception provided in section 15E of the Act, would likely lead to the identification of the accused child.

The court was required to decide whether the publication of the deceased child's name, in conjunction with the judgment, would likely lead to the identification of the accused child. This required a nuanced understanding of the exceptions provided under section 15E of the Act and how they applied to the facts of the case. The court had to consider whether the likelihood of identification was to be assessed based on the possibility that those in the community with personal knowledge of the circumstances of the alleged offence could identify the accused child.

The court determined that the issue was not merely a question of the possibility of identification by those in the community with personal knowledge of the circumstances of the alleged offence. Instead, it was a matter of whether the judgment published with the name of the deceased child would likely lead to the identification of the accused child. The court found that the likelihood of identification was a question of fact and degree, which required a detailed examination of the specific circumstances of the case. Ultimately, the court concluded that the judgment should not include the name of the deceased child to avoid the risk of identifying the accused child. The court ordered that the name of the deceased child be redacted in any published judgment.

Orders